Loomis v. Slendertone Distribution, Inc., Case No. 3:19-cv-854-MMA (KSC)

• Decision Date: 04 November 2019
• Docket Number: Case No. 3:19-cv-854-MMA (KSC)
• Parties: Jane LOOMIS, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. SLENDERTONE DISTRIBUTION, INC., Defendant.
• Court: U.S. District Court — Southern District of California

420 F.Supp.3d 1046

Jane LOOMIS, on behalf of herself, all others similarly situated, and the general public, Plaintiff,

v.SLENDERTONE DISTRIBUTION, INC., Defendant.

Case No. 3:19-cv-854-MMA (KSC)

United States District Court, S.D. California.

Signed November 4, 2019

Filed November 6, 2019

Jack Fitzgerald, Trevor Matthew Flynn, The Law Office of Jack Fitzgerald, PC, San Diego, CA, for Plaintiff.

Gary A. Wolensky, Paul Augusto Alarcon, Christopher Hossellman, Buchalter, APC, Irvine, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

Hon. Michael M. Anello, United States District Judge

Jane Loomis, on behalf of herself and others similarly situated, ("Plaintiff") filed a putative class action complaint against Slendertone Distribution, LLC ("Defendant"), alleging five causes of action under California law: (1) violations of the Unfair Competition Law ("UCL"); (2) violations of the False Advertising Law ("FAL"); (3) violations of the Consumer Legal Remedies Act ("CLRA"); (4) breach of express warranty; and (5) breach of the implied warranty of merchantability. See Doc. No. 1 ("Compl.").¹ On July 12, 2019, Defendant filed a motion to dismiss the class action complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(2), and 12(b)(6). See Doc. No. 8. Plaintiff filed an opposition to Defendant's motion, and Defendant replied. See Doc. Nos. 13, 15. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 16. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss.

BACKGROUND ²

This action arises out of the sale of the Flex Belt by Defendant to Plaintiff on or about April 22, 2016. Compl. ¶ 24. The central issues arise from statements and representations made in Defendant's Flex Belt advertisements.

Plaintiff is an individual domiciled in San Diego, California and brings the action on behalf of herself and a potential class of similarly situated individuals. Id. ¶ 5, 34. Defendant is incorporated in and has its principal place of business in New Jersey. Id. ¶ 6.

Defendant markets and sells the Flex Belt, an electrical muscle stimulator (EMS). Id. ¶ 3. EMS devices are considered Class II Medical Devices by the Food and Drug Administration ("FDA"). The FDA has cleared the Flex Belt as a device that "may be able to temporarily strengthen, tone or firm a muscle." Id. ¶ 3; Doc. No. 8-8 at 2. However, the FDA has "specifically disapproved such devices to assist with weight loss, contour the body, develop visible "six-pack" abs, or otherwise to replace traditional exercise." Id. ¶ 3. Moreover, the Federal Trade Commission ("FTC") "has already determined that any claims that such ab devices cause fat loss and inch loss, will give users well-defined abdominal muscles (e.g., ‘rock hard,’ ‘six pack’ or ‘washboard’ abs), or that use of the ab devices is equivalent to conventional abdominal exercises, such as sit-ups or crunches, are false and misleading." Id.

Plaintiff alleges Defendant advertised that the Flex Belt would help consumers achieve the benefits of traditional exercise without traditional exercise. Plaintiff claims she relied on Flex Belt's website and Amazon.com listing before purchasing a Flex Belt and, later, replacement gel pads. Id. ¶ 3, 24. Essentially, Plaintiff alleges that Defendant's advertisements were false or misleading because Defendant advertises that using the Flex Belt "would assist in weight loss, body contouring, develop visible ‘six-pack’ abs, and could be used effectively as a replacement for abdominal exercises." Id. ¶ 4. In addition to Defendant's website and Amazon.com listing, Plaintiff claims she also relied on information from Defendant's Facebook advertisements and television commercials. Defendant's other advertising initiatives include "celebrity endorsements, paid-advertisement articles, paid bloggers, social media ... and third-party retailers. Id. ¶ 11.

Plaintiff points to numerous quotations from Defendant's Flex Belt marketing:

GREAT ABS START HERE[.]

Rid Belly Fat with The Flex Belt[.]

The perfect abdominal contraction[.]

The Ultimate Workout for Abs[.]

The Flex Belt helps me stay fit[.]

The Flex Belt will stimulate all your major stomach muscles at the same time providing you with the perfect abdominal contraction—that means your upper abs, the lower abs and even your obliques are going to get worked from The Flex Belt ... and it does all the work for you.

I can make dinner, I can do the laundry, read a book, sit on the couch or check e-mail. I put on The Flex Belt, it does all the work, and I get the result.

The Flex Belt is the first Ab Belt Toning system cleared by the FDA for Toning, Firming and Strengthening the stomach muscles. With The Flex Belt, you can train your abs even if you're too busy or too tired for a traditional workout. Just slip on the comfortable toning ab belt and the clinically demonstrated, patented medical-grade technology stimulates the nerves that make your muscles contract and relax. As a result, you get an effective abdominal workout that targets all the muscles in your abdomen—all in just 30 minutes a day.

You don't have to worry about your form or come up with the time to get it done. The Flex Belt is clinically demonstrated to deliver firmer, stronger and more toned abdominal muscles while you are: at home, at work, watching TV, exercising, folding laundry, helping your kids with their homework, taking a walk ... [.]

My abs look great and when you look good, you feel good. I would have to do so many different exercises to get all my abs, but with The Flex Belt it works all the ab muscles at the same time.

I don't have to worry about my abs – they will be in shape.

Everybody I know wants the same thing: Great abs. The look, the confidence it gives us. The truth is, abs are a pain to work out. The Flex Belt saves you time, because it works all your abs at the same time. Just look how easy this is.

My abs feel like I have had the most amazing work out and I've just worn the belt around the house for 30 minutes.... It works.

I would do so many different exercises to get all of my abs, but with the Flex Belt it works all of the ab muscles at the same time. With the Flex Belt I don't have to worry about my abs—this does work.

I just have to put it on, it does the work, and I get the results.

Being an athlete and fitness model for most of my life I know that good abs come from a lot of hard work. As my schedule kept getting busier I was having a tough time fitting in my ab workouts because I was spending my exercise time on other things, which is when I decided to give this ab belt a try. I was blown away by how intense the contractions were on my abs and how unbelievable they felt after my first Flex Belt abdominal workout. What was even more incredible was the convenience of it. I could put The Flex Belt^® on and continue my day.

Before I experienced The Flex Belt, I had a difficult time training my abs due to a car accident that left me with a bad back. Abdominal exercises hurt my lower back. Thanks to The Flex Belt, I am able to take my ab workout to a whole new level. The best part is I get a great, pain free ab workout in while helping the kids with their homework, making dinner or watching a movie.

Maximum Core Strength[.]

Ultimate Toning Technology[.]

Id. ¶ 20.³ Defendant's website also states the following:

Who Should Use the Flex Belt^®? ... Anyone that wants more attractive abs, regardless of current fitness levels.... * The Flex Belt® does not remove inches of fat but it tones, tightens and strengthens your stomach muscles

Build a strong foundation for any exercise program—The Flex Belt's^® technology will work for you quickly and effectively . If you haven't exercised in a while, you know how hard it can be to motivate yourself to start again. And if you do have a regular exercise program, you know how hard it can be to find the time to get to the gym with your busy schedule. With The Flex Belt^®, it doesn't matter what your current exercise status is because there will always be time to build firmer, stronger abs . This product is perfect for Casual Exercisers, Fitness Enthusiasts who are already in great shape, Executives who don't have time to make it to the gym, Seniors, Mothers, People with sore backs, and anyone that wants more attractive abs, regardless of current fitness levels .

The Flex Belt^® can work for you too ... For those looking for a convenient way to tone, strengthen and flatten the abdominal area, you couldn't make a more solid choice than The Flex Belt^®. No matter what else you are doing to work on your stomach area—The Flex Belt^® will enhance it. Ab workouts are usually the type of exercise that take a lot of time, dedication, and effort. The Flex Belt^® is ideal for everyone who feels he or she doesn't have the time to fit enough ab exercises into their routine. It is also great for fitness enthusiasts who want to take their workouts to the next level. Additionally, The Flex Belt^® intensity can be adjusted from level 1-150. As you use this effective ab belt, your muscle strength continually increases. As your abs get stronger you can keep increasing the intensity to always keep yourself advancing.

Doc. No. 8-5 at 6, 8, 9.

Additionally, Plaintiff's Complaint includes screenshots from Defendant's website and Amazon.com listing. Id. ¶ 21–24. Plaintiff relies upon testimonials from Flex Belt users to support her claims. See id. ¶ 21; Doc. No. 8-5 at 5. Moreover, Defendant's advertising contains several images throughout its Website and Amazon.com listing of individuals with "flat, toned, ‘six-pack’ abdominal muscles on celebrities and models to convey that such results can be achieved through use of the Flex Belt." Compl. ¶ 23; see also id. ¶ 22; Doc. No 8-5 at 3–10; Doc. No. 8-6 at 2–5.

Defendant's website and Amazon.com listing also contain language designed to mitigate...